Commentaries on current events of concern to average U.S. citizens by a legal immigrant who chose personal responsibility for her life and succeeded on her own -- retired U.S. Air Force officer, former professional staff member on the U.S. Senate Select Committee on Intelligence, analyst, publicist, community service volunteer.

Friday, December 30, 2005

Prominent news readers on major news networks called the fact that the Department of Justice is investigating the source of the recent leak about NSA's intercept program a "Stunning development!" Even the most cursory research would have served as a reminder that the DoJ is required to investigate national-level breaches of law and such an investigation should come as no surprise to anyone.

The National Security Act of 1947, which governs these matters, tasks the President with the establishment of procedures to govern access to classified information. This act also defines classified information as "information that has been determined pursuant to Executive Order 12356 (or successor orders) to require protection against unauthorized disclosure." Although technically the President is the official U.S. classification authority, this authority is delegated to the Director of National Intelligence (formerly the Director of Central Intelligence). The act makes this official "responsible for protecting intelligence sources and methods from unauthorized disclosure." It also requires him to notify congressional oversight committees of any violation and to refer violations to DoJ for investigation.

"The government has no legal right to pursue the whistleblower [or] whistleblowers who disclosed what's been publicly aired to date," cried a lawyer representing whistleblowers.

I could not disagree more: it is illegal for anyone to violate their secrecy oath, a legally binding condition of access to classified information, and all violators of our laws must be held accountable. To deal with real or perceived abuses by any government agency is precisely why there is a well-established complaint process within the each agency of the executive branch, as well as legislative oversight by appropriate congressional committees with properly cleared members of Congress and staff. The leaker signed an oath - going to the New York Times violates that oath - no matter what the intent.

The National Security Act has specific provisions for the Inspector General to " ensure operations are conducted efficiently and in accordance with applicable law and regulations" and to report to the DNI and oversight committees violations, abuses, fraud and other serious problems and deficiencies, as well as corrective actions. The act further offers specific protection for whistle blowers: the IG may not disclose their identity without their consent and there may be no reprisal (or threat thereof).

As an intelligence professional I can tell you with absolute certainty that only authorized government personnel (or government contractors) with appropriate clearances, who have a specific need to know because of the position they hold, have legal access to classified information. There are no circumstances under which citizens or media reps have the right to this access, although access is sometimes granted on a limited basis during certain judicial proceedings.

The fact that there are abuses of this trust within the government or in the intelligence community (just like law enforcement members, politicians, teachers, clergy, lawyers, etc. sometimes violate the trust placed in them), in no way justifies the unauthorized release of classified information to anyone and it remains illegal to do so. To deal with violations of this trust is precisely why we have a rigorous system of congressional oversight since the mid-1970s: the oversight committees' (intelligence, judiciary, armed services, etc) members and staff are specifically cleared for classified access and well-equipped to deal with this type of problem. I did just this during several years on the staff of the U.S. Senate Select Committee on Intelligence.

The law provides for punishment of those with legal access to classified information who release it to unauthorized recipients, not those who receive it this way and make it public. Thus the media can make anything public they want, but that does not mean they have the right to classified information. The leakers are violating the law, not the media.

At his news conference last week, President Bush objected when a reporter characterized his use of executive power to eavesdrop on Americans without any court order as "unchecked." The president's sensitivity is understandable. As he went on to explain, the charge of unchecked power implies that he is asserting a kind of dictatorial authority -- precisely what Americans fought, and continue to fight, against in Iraq. But what are the sources of checks and balances of a president's authority? They are the Congress, the courts and, ultimately, the American people. Based on the facts as reported so far, none of these appear to have operated as an effective check on this extraordinary exercise of presidential power.

Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans' faith in the rule of law and our system of checks and balances. The administration says Congress was briefed "at least a dozen times" in the four years since the wiretap program started. Even assuming that these classified briefings accurately conveyed all relevant facts, it appears that they were limited to only eight of the 535 senators and representatives, under a process that effectively eliminates the possibility of any careful oversight.

As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.

These gang of eight briefings, while sometimes necessary, should be extremely rare. Under the National Security Act, they are supposed to be limited to situations involving covert actions, and even then only under "extraordinary circumstances." Yet they have occurred with increasing frequency in the last few years.

Before I worked on the intelligence committees, I was a lawyer at the CIA. We understood that congressional oversight was key to maintaining the trust of the American public, which is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a "check the box" mentality -- allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.

And it is clear that the courts did not have any role in reviewing this assertion of executive authority. Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That's neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said?

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.

FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. Yet, since 2001, FISA judges have reportedly reviewed more than 5,645 applications and rejected only four. The current judges were all hand-picked by the late Chief Justice William Rehnquist, who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties.

Nevertheless, if administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments , for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Now that the existence of this program has been revealed, the FISA judges are finally being briefed and the Senate Judiciary Committee has signaled its intention to hold hearings. Perhaps these co-equal branches will get some more specific answers to important questions like: What legal reasoning was used to justify the program in 2001? What standard is used in this program? Why couldn't FISA be used? If FISA was inadequate in some way, why not seek to amend it? What is the value of the intelligence obtained? Are there other secret programs that the heads of the intelligence committees have not been briefed about?

The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O'Connor reminded us in Hamdi , "It is during our most challenging and uncertain moments . . . that we must preserve our commitment at home to the principles for which we fight abroad."

Suzanne Spaulding is a Washington lawyer. She was general counsel for the Senate and House Intelligence committees, assistant general counsel at the CIA and executive director of the National Terrorism Commission (1999-2000).

Sunday, December 18, 2005

While there are still details of this development we don't know yet and probably won't know because of the classified nature of the activity, here are some initial observations:

Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.

He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.

Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing - we elected him to conduct the people's business to the best of his ability. While healthy dialog on issues is desirably and an unalienable right of every American citizen, continually hounding the president just because he is disliked personally by some detracts from the business at hand --it is not in the people's best interests and wastes precious resources better applied elsewhere. We often forget the real meaning of representative government: electing the best representatives we can and then letting them do their job without constant second-guessing.

The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA's internal Inspector General and/or the Intelligence Community's Inspector General. If the internal oversight process proved insufficient, legislative oversight would have been the next logical place for these officials to take their concerns: congressional oversight committees routinely investigate just those types of concerns in a legal setting designed to preserve classified national security information. Should following this well-established process still not satisfy their concerns, the honorably course of action for any true intelligence professional is to resign from such an untenable position - WITHOUT revealing classified information and potentially damaging national security.

These "concerned" officials have acted extremely unprofessionally: they clearly violated their secrecy oath and the provisions of the 1980 Classified Information Procedures Act by providing classified information to the media. While it may come as a shock to some, the media is NOT entitled to classified information under any circumstances.